Suwon District Court-2015-Gu Partnership-6063 ( October 27, 2016)

It is difficult to see that the service charges equally divided to the employees belonging to the service association through the service association organized by employees constitute service charges not included in the amount of sales.

(As stated in the judgment of the court below, it is difficult to view that the customer’s payment of equal amount to employees belonging to the Service Association by allocating non-specified and uniform service charges to the employees of the Service Association, which are not specified, constitutes a service charge not included in the sales amount, since it cannot be deemed that the customer’s payment of equal amount to employees of the Service Association, such as ice, constitutes a service charge

Article 13 of the Value-Added Tax Act and Article 48 of the Enforcement Decree thereof.

2016Nu37609 Revocation of Disposition of Imposition of Value-Added Tax, etc.

AAAAA, stock company BBBB, KimCC

DD Head of the tax office

Suwon District Court Decision 2015Guhap6063 Decided January 26, 2016

November 23, 2016

December 14, 2016

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the court of first instance shall be revoked. The disposition of value-added tax on November 15, 2013, which the Defendant rendered against the Plaintiff Kim Sung-sung, and the disposition of imposition of each corporate tax and value-added tax on the same details as the Plaintiff AAAA and BBBB made against the Plaintiff AA and BBB made, shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, except in the following cases: (a) the part of the reasoning for the judgment of the first instance is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act: (b) the reasons for this Court’s explanation are as follows.

In light of the provisions of these Acts and subordinate statutes, u 300, it is considered whether the service charges of this case constitute the service charges of employees excluded from the plaintiffs' sales amount.

According to the overall purport of Gap evidence Nos. 5 through 20 (including each number number), Eul evidence Nos. 2 and 3, the plaintiffs received 5% of the food service charges from customers while running a wedding business, and credit card sales slip No. 5% of the food service charges issued to customers are divided. ② Employees of the food hall and employees of the plaintiff Kim Sung-hwan (hereinafter referred to as the "the plaintiff Kim Sung-hwan") are equally divided among the service charges received from the plaintiffs. ③ The service charges of this case are not included in the statement of the wages of the employees who received them, ④ The members of the contract No. 11 prepared between the plaintiff KimCC and the service charges of the defendant shall be paid for all of the service charges of the plaintiff's employees, and the company shall not be paid for all of the service charges of the plaintiff's employees.

3) However, in full view of the above evidence and the statements in Gap evidence Nos. 22 and 23 as well as the overall purport of the arguments, it is difficult to view that the service charges of this case were paid directly to the employees who provided the service in return for the special service provided by the employees of the plaintiffs, and therefore, it cannot be deemed that they constitute the service charges of employees who are not included in the plaintiffs' sales amount. Accordingly, the plaintiffs' above assertion is groundless.

① The Plaintiffs, without distinguishing who are the employees of the Plaintiffs from what kind of services are provided by the Plaintiffs (e.g., food and wedding services) or who provide intangible services, such as speech, friendship, consideration, etc., entered into a marriage-related agreement by uniformly allocating 5% of the food room as service fees to enter into a marriage-related agreement without distinguishing them from who are the employees. Accordingly, the Plaintiffs received service fees from the customers.

② In light of the fact that the content of “the service charge shall be paid by the Plaintiff” under Article 11 of the Securities and Exchange Agreement written between the Plaintiffs and the customers is written in the same word, and that the service charge portion is printed with 5% “5% of the food unit” unlike the date, time, amount of reservation, and the food portion in the terms of the contract written in its own form, the customer’s position seems to have to have to have to pay the service charge in lump sum for the use of the wedding hall and the annual meeting hall. Therefore, it is difficult to deem that the customer paid the service charge in this case with the intention to directly revert to the employee who provided the service, such as ice, separately from the price for the supply of the goods or services by the Plaintiffs.

③ In light of the details of the payment of service charges of this case (No. 22 and 23 evidence), most employees who received the service charges of this case belong to cooking division, business division, and support team. According to the above payment details, the employees of the Plaintiffs were in charge of each of the following duties and received service charges in return. This is deemed to fall under the Plaintiffs’ main service of food and wedding that are supplied to customers, and it is difficult to view the Plaintiffs as a separate service that is distinct from the main service.

④ In addition to the above circumstances, the employees belonging to the instant volunteer association did not receive the amount determined by the customer according to the type of service, time, etc., but in principle, the employees belonging to the instant volunteer association received the amount equally divided by the number of employees belonging to the instant volunteer association as volunteer fees, and the Plaintiffs’ employees, in addition to the Plaintiffs’ employees, are deemed to have responded to the employees at the annual president. However, in light of the fact that the employees belonging to the instant volunteer association were excluded from those entitled to the payment of the instant salary feed, and that the amount received as volunteer fees exceeds 14 to 22% of the amount of wages, it is reasonable to deem the instant volunteer fees as piece of piece of piece of piece of piece of piece of piece of piece of piece of piece of piece of piece of piece of piece of piece of performance paid in return for the main work performed by the employees belonging to the Plaintiffs.

⑤ The Plaintiffs asserted that the instant service charges are not included in the business’s tax base as long as all employees received the instant service charges in return for overall inspection of the service from customers and distributed them autonomously. However, as seen earlier, the Plaintiffs’ employees are considered to have received the service charges in return for performing duties according to the main service to be provided to customers according to the contract for marriage relations, on the grounds that there is no evidence to acknowledge that the Plaintiffs’ employees received the service charges in return for the provision of separate services distinct from the main service, and there is no other evidence to acknowledge that the Plaintiffs’ employees received the service charges in return for the provision of services.”

2. Conclusion

Therefore, the judgment of the first instance court is justifiable, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.